December 27, 2013

Folks on this blog (myself included) often discuss and debate the impact of racial issues, federalism and prosecutorial discretion on the operation of our nation's criminal justice systems. Consequently, this new Christian Science Monitor article with the same headline of this post just caught my eye as blogworthy. Here is the article's subheading: "The Obama administration's decision to charge a white man with a hate crime for allegedly punching a black man as part of the knockout game has led to criticism that it is applying the law unevenly." And here is more from the piece:

The US Department of Justice on Thursday stepped into the cultural fray about the so-called “knockout game” when it brought federal hate crime charges against a white Texas man for assaulting an unsuspecting black man.

The decision shines a brighter spotlight on the knockout game, in which an assailant tries to knock out a bystander with a single punch. A spate of incidents have gathered national attention in recent months, though it is unclear whether the game has become more popular or whether the Internet has simply allowed for isolated incidents to be broadcast more widely.

The majority of the reported incidents, however, have involved black men targeting white victims – and none triggered federal involvement. The fact that the Justice Department has elected to step in now, when a black man was the victim, has led to criticism among conservative pundits that the Obama administration is applying the hate-crime statute unevenly....

Conrad Barrett was arrested Thursday and charged under federal hate crimes law, which defines a hate crime as “motivated by enmity or animus against a protected class.” (The Federal Bureau of Investigation also lists anti-white crimes as hate crimes.)...

Federal prosecutors say Mr. Barrett planned the Nov. 24 attack, which he filmed with his cellphone. He approached “G.C.”, an elderly black man, and said, “How’s it going, man?” then punched him so hard that G.C.'s jaw was broken in two places and he lost three teeth. Barrett then allegedly cried “knockout!” and ran.

He was caught after he told the tale at a bar, where an off-duty cop was present. Federal prosecutors argue that the attack was motivated by racial animus because police uncovered videos where Barrett allegedly used racial epithets and at one point said that black people “haven’t fully experienced the blessing of evolution.” In another video from the day of the assault, Barrett says, “If I were to hit a black person, would this be nationally televised?”

A single hate crime charge carries a maximum of 10 years in federal prison and a $250,000 fine.

Some conservative bloggers see racial hypocrisy in the charges. “This case shows how warped law enforcement has gotten as a result of hate crime legislation,” writes Rick Moran on the American Thinker blog. “No matter who is in charge, the law will always be selectively enforced. It makes a mockery of the notion of equal justice under the law.”

Concern about the game has percolated within the black community. This fall, several black leaders, including Philadelphia Mayor Michael Nutter, spoke out about the knockout game and warned black parents, in particular, about the consequences for dangerous behavior by their kids.

Hate crime charges have been brought this year against one black suspect accused of playing the knockout game, but they were state charges brought by New York in the case of a knocked-out Jewish man.

For his part, Jack Levin, a criminologist at Northeastern University in Boston, is not convinced that knockout game attacks are growing. He argues in an upcoming journal article that racially fueled knockout attacks are in the news is because they’ve actually become rarer than in the past, so they are more notable. The 1990s, he says, had far more reports of so-called “thrill hate crimes” -- think white teenagers beating up homeless men....

According to FBI hate crime statistics, 22 percent of the 3,297 reported racially motivated hate crimes in 2012 were anti-white, while 66 percent were anti-black. (Others included anti-Pacific Islander and anti-Alaskan native attacks.) The Justice Department insisted Thursday that it does not discriminate in how it makes decisions on hate crime charges. “Suspected crimes of this nature will simply not be tolerated,” said US Attorney Kenneth Magidson of the Southern District of Texas. “Evidence of hate crimes will be vigorously investigated and prosecuted with the assistance of all our partners to the fullest extent of the law.”

Especially in light of the fact that "thrill" beatings are likely always to be localized assaults and that such crimes may actually be declining even as media reports about them increased, I am inclined to criticize the feds for getting involved at all before I will express concerns about racial disparities in how local federal prosecutors decide to bring hate-crime federal charges. More broadly, to the extent that a lot of federal involvement in state matters has often been justified by a concerns that southern courts have in the past been much more concerned about white victim than black ones, the fact that the feds have gotten involved in a case like this in Texas (perhaps after state authorities were slow to respond) involving a younger hoodlum going after elderly man, makes me hesitant to throw around labels like racial hypocrisy until I had more detailed information about why prosecutors moved forward with federal charges in this case but not in others.

That all said, this case and the reaction thereto provides further support for my belief that everyone tends to favor a potent federal criminal justice system and unregulated federal prosecutorial discretion unless and until the feds start using their broad powers in ways that a particular group dislikes.

Comments

I agree Doug. This is what happens when one tries to draw a conclusion from extremely unusual events. One prosecution does not a trend make.

However, I do agree with the broader theoretical criticisms that 'hate crimes' draw. I think such laws should be abolished as a matter of principle.

Posted by: Daniel | Dec 27, 2013 1:46:37 PM

Since whites do not have historical prejudice against them, whites (as victims) do not have the legal authority to claim "enhanced victim." Only members of race, gender, or ethnicity that has historically been repressed can legitimately claim hate crime status as long as their assaulter is a member of a group that has historically repressed groups in the first place.

Clear as mud? Absolutely. Unconstitutional? Technically, yes; pragmatically, no. Fair? Hell no! But this is the working model we have to live with.

Posted by: Eric Knight | Dec 27, 2013 1:55:37 PM

"That all said, this case and the reaction thereto provides further support for my belief that everyone tends to favor a potent federal criminal justice system and unregulated federal prosecutorial discretion unless and until the feds start using their broad powers in ways that a particular group dislikes."

I must have missed the post where anyone was carrying the flag for "unregulated federal prosecutorial discretion." Where was that?

No reasonable person supports such a thing. The only question is whether prosecutorial discretion -- a power constitutionally given the political branches -- will be regulated by political processes, or whether it will be regulated by unelected federal judges.

The idea that "political regulation" means "no regulation" is just silly -- something that liberals themselves fully recognize, and endlessly moan about, when they complain that it's only those nasty political realities that prevent Obama from granting more clemency or holding a civilian trial of Khalid Sheik Mohammed in NYC.

It's a silliness that needs to be maintained, however, to continue the narrative that prosecutors are Satan while judges like Weinstein and Gleeson (and Alcee Hastings and Jack Camp and Walter Nixon)(and, no, the latter three are not like the former two) are sainted. Because, ya know, the judicial branch is infallible and never needs checks or balances from the other branches, but prosecutors are busy-as-a-bee hiding evidence.

I will be the first to concede that this version of the world runs rampant in the defense bar, which tells you a lot of what you need to know about why the defense bar has the public repute it does.

Posted by: Bill Otis | Dec 27, 2013 2:30:00 PM

So how, Bill, do I and other voters troubled by this case and others effectively hold federal prosecutors "politically accountable" for bringing too many local/state cases in federal court? I have lamented the growing federal caseload since I was able to understand these matters and have voiced political support for all federal officials who want to do something about this. But unless Rand Paul runs for Prez, I fear I will be looking at a Prez election choice between two candidates ready/eager to support still more federal crimes and prosecutions.

I agree 100% that at the state level, local elections for AGs and DAs serve to regulate local prosecutors. But at the Federal level, we only get to vote for Prez and only every 4 years and many federal prosecutors are career folks who stay in power even as administrations change parties.

This is why I am eager to see fewer federal prosecutions and sentences, as there is functionally little or no political check on either prosecutors or judges in the federal system and lots of accountability on both in state systems. Thus, if you really value political regulation of prosecutors, you should be joining my calls to cut the federal caseload in half (if not more).

Of course, one way Congress can impact federal prosecutors is by reducing their power via sentencing reform, but you resist that, too.

Once again, Bill, reality does not match your rhetoric. What I still wonder, though, is whether you know that and enjoy being the fraudulent Wizard of Federal Prosecutors, or whether you truly believe you rhetoric and think you Wizard ways reflect the magic power bestowed on all those who work for DOJ.

Just as I do not think the Wizard of Oz was satan, I do not think any federal prosecutors are. In fact, I tend to have a lot more respect and admiration for the work and challenges prosecutors face than judges face. But, because power corrupts and absolute power corrupts absolutely, I tend to worry that we have less means to identify and remedy the problems when we'll meaning prosecutors make mistakes.

Posted by: Doug B. | Dec 27, 2013 6:01:18 PM

Doug --

"Once again, Bill, reality does not match your rhetoric."

Was that sentence actually written by the same guy who said that there are those -- apparently quite a few -- who favor "unregulated federal prosecutorial discretion"???

Gads, one would think you're writing that from Disneyland.

Oh............wait...................

Anyway, moving right along: The beef seems to be that I actually have this hidden agenda to Give All Power To Prosecutors, although I haven't been one since the last millennium and have major, major disagreements with the current DOJ. It seems to me, though, that the shoe is on the other foot: YOUR major agenda by far is to have fewer defendants sentenced to less time. You (correctly) see that the way to get to this is to kneecap (figuratively) the executive branch's charging power and move it more over toward regulation of (read: control by) the judicial branch, and in particular to judges who share your ideology -- judges like Weinstein, Gleeson, Gertner (before she left), Kane, Bennett and more.

Isn't that what's really going on? That your backing for a procedural change (a shifting of charging power away from prosecutors and toward judges) is less tethered in the constitutional design (since it isn't tethered there at all), and more rooted in your desire to get to your preferred substantive result?

Isn't that it?

If it is, believe me, I don't hold it against you. Every lawyer worth his salt wants to change the ground rules with an eye on moving the result in his favor. (Choice-of-law courses are about little else).

I go back to Weinstein's scandalous, lawless, and appallingly pro-criminal opinion in the Corey Reingold case (the one reversed three months ago by a unanimous, and liberal, Second Circuit panel). As I have worked to defeat Leahy/Paul and its offspring, I have had no better friend. You ask liberals whether they really want judges like Weinstein running roughshod with absolutely no Congressionally-imposed floor on what they can do, and they look at the ceiling.

Sometimes God gives you a gift at just the right moment. Do you really think giving unlimited license to the Jack Weinstein's of the world is going to get a majority in either house of Congress? Do you think it should?

P.S. I know that you don't think prosecutors are Satan, but there are oodles and oodles of your commenters who think exactly that (despite the late-blooming oh-no-not-me disclaimers they may be about to launch).

Posted by: Bill Otis | Dec 27, 2013 6:50:14 PM

Bill. I cannot speak for Doug but I think your position is too binary, too black and white. There is nothing in my past comments that can be fairly characterized as thinking that all prosecutors are Satan. I recognize--as you do--that in our scheme of government that prosecutors are given and indeed need to be given discretion. At the same time, I also agree with Doug that at the federal lever holding prosecutors accountable for their actions is a much more difficult process than at the state and local level because of power attenuation.

Part of the reason that I have stayed out of that issue is because to be frank I do not have a good answer to it. I am sympathetic to the concern about giving even more power to judges: it is a valid point. It would be a valid point even if every judge were a saint. If one believes in a balance of power mechanic there has to be actual power given to each side otherwise an actual balance is impossible.

Perhaps you are right Bill. Perhaps Doug B. is simply concern trolling to hide a different agenda. You know him personally whereas I do not. Still, until I know different I take him at face value. And I do think there is a issue here of how can a citizen have responsible government if he cannot even get responsive government.

Posted by: Daniel | Dec 27, 2013 7:59:28 PM

I'm inclined to think without more that crimes like this should be local matters. I'm wary of hate crimes generally (e.g., a gruesome crime against a gay man led to a hate crime law, but simply trying the people for the crime itself would have obtained a long sentence). The recent hate crime law applied to gays was something I wasn't overly enthusiastic about, except as a matter of consistency and some relatively non-controversial elements. OTOH, I don't think, at least per current law, such laws generally are unconstitutional. Some might be -- see, e.g., R.A.V. v. St. Paul (cf. Wisconsin v. Mitchell).

You make a little comment at the end of a post, and someone creates multi-paragraph diatribes that concern only that portion of the post and not the substance of the post, i.e., hate crimes and the apparently unlimited federal jurisdiction in matters which should be local and an apparently uneven federal application of said ridiculous laws. Kind of makes you feel sorry for Strawman builders. Cry me a river.

It may be loneliness. I noticed that no one has commented at the C&C blog since December 19th. Kind of like the Maytag Repairman.

Posted by: albeed | Dec 27, 2013 10:06:26 PM

Bill, I am very eager to state that I am now very eager to see many fewer FEDERAL defendants sentenced to less FEDERAL prison time, but that is in large part because we have seen the FEDERAL criminal justice system grow in extraordinary ways over the last 20+ years.

According to BJS data in 1988, "U.S. attorneys investigated 94,548 suspects" of which roughly 70% (66,000) were prosecuted, from which 80% were convicted (53,000). Among those offenders convicted in US district court (the most serious offenders) in 1988, only about 55% got a prison sentence and 35% got straight probation. So, in sum,fewer than 30,000 federal scoundrals were sent to federal prison in 1988 even as high/rising crime rates created growing (and, in my view, justified) concerns about the need to be much tougher on some drug and all violent crime.

According to the latest USSC data, in FY2012, nearly 75,000 federal scoundrals (90% of those convicted) were sent to federal prison even as historically low crime rates and concerns about the costs (both fiscal and human) of a massive federal criminal justice system grows. (Also, let's not forget that the prison sentences for the 1998 scoundrals included the likelihood of parole (often as early as 1/3 of time served; Mike Milkin served all of 2 years in the federal pen) and very few folks were subject yet to MMs back in the 1980s. Now there is no federal parole and prosecutors can threaten at least 5 years and often decades of mandatory imprisonment in all but some fraud offenses. And even in fraud cases, the modern Milkins (e.g., the Rigases? Rubashkin?) often get a decade or more, especially if they have the temerity to exercise their trial rights and claim innocence.)

Now you repeatedly say... look at all we achieved, let's not go back. I concur somewhat. I like sentencing guidelines, especially when advisory with some real bite (as in the federal system now). But I still think we could, without any significant impact on public safety, go usefully back a bit to, say, 50,000 federal convictions and only an 80% prison rate for those convicted so that we add only 40,000 bodies/year to the federal prison dole. If it was good enough for the second-term Reagan era, I suspect it is good enough for the second-term Obama era.

There are, of course, lots of reasons to account for the modern massive growth of federal prosecution and incarceration. But a main one seems to me to be federal prosecutors having more resources and more power to process more and more marginal cases that, in my view, might be much better left to the states --- in part because states have to balance their budgets, and they actually have to explain the economic costs of a growing CJ system to voters who are not eager to pay more in taxes to justify sending drug dealers to prison for long periods. See, e.g., modern reforms we have seen in all big incarceration states from California to Georgia to New York to Ohio to Texas.

Key insight: federal prosecutors --- being good people with no real political or legal or fiscal accountability when they (over?)expand their powers --- are ever eager to expand their powers and to see their mission in terms of putting more and more bad people in federal prison for longer and longer periods. Notably, Judge Gleeson was a federal prosecutor in 1988 and he realizes he had plenty of power to get bad guys like Gotti even in an era of no guidelines, no MMs and parole. He likely finds distasteful not only that today's feds get to shoot fish in a barrel, but also that they keep finding lots of new barrels to shoot through with the fish get smaller and smaller and the cost to federal taxpayers continuing to grow.

In short, I think you have cause and effect backward: I think the federal criminal justice system is too big and too harsh because federal criminal law now gives federal prosecutors far too much power without real accountability or regulation to help ensure they use this power wisely. (I suspect everyone you hang out with on the right will be quick to say this is the problem with ObamaCare with this tweak: "new federal [health care] law now gives federal [officials] too much power without real accountability or regulation to help ensure they use this power wisely.)

I know that you --- and lots of other federal prosecutors who write me to say I am too tough on prosecutors --- may have confidence that federal prosecutors generally use their powers more wisely than federal judges. Maybe so, but as I stress often, how can we know? You can harp on the Reingold case, but that judicial sentencing "mistake" can and typically does get fixed on appeal. In contrast, you had to prod Prez Bush to fix the prosecutorial "mistakes" made in the Scooter Libby case through clemency AND others on the right had to do likewise to help out the badly over-prosecuted Border Guards.

Of course, if (when?) crime is high again and some federal prison beds empty and federal coffers flush, my views on some of these issue might be different. (That said, the evidence suggesting that, for true first offenders, prison can often be criminogenic will likely always push me toward the default idea that prison should be a last-resort for most first-offense, non-violent offenses.)

My views/goals notwithstanding, Bill, I return to the question of whether you really believe, functionally, that line federal prosecutors --- i.e., the ones who make nearly all initial charging/bargaining decisions --- are really in a tangible way "regulated by political processes." You are 100% right that politics is sure to impact high-profile federal criminal justice decisions by the Prez and the AG --- e.g., I suspect, for example, that the decision to take a plea deal in the Unibomber case and/or to seek capital charges for the Boston Bomber includes political calculations. But do you really think the "political processes" truly impacts the charging and bargaining decisions made by hundreds of career federal prosecutors in the roughly 150,000+ lower-profile cases in which a defendant is investigated/arrested on a federal charge?

For all your whining about Weinstein and Gleeson, I know in EVERY case they (and hundreds of other diverse judges) are sentencing federal defendants, they are regulated by federal sentencing law, by transparency requirement, and by appellate review AS WELL AS by political processes (e.g., look at how Judge Cebull was forced to resign because of political heat concerning his racially-charged e-mail). Meanwhile, I maintain --- subject to your correction --- that in 99.9% of all cases that federal prosecutorial discretion is functionally unregulated (except perhaps in mysterious ways inside DOJ is rarely disclosed, discussed or even acknowledged).

So, in light of your eagerness to restrain federal judges by law (and other means) along with your oft-stated disaffinity for any reforms that could reduce or impact federal prosecutorial powers, I think it is fair to assert that, at least functionally if not formally, you do carry the flag for "unregulated federal prosecutorial discretion." And that is why I enjoy calling you the Wizard of Federal Prosecutors and hope that you will continue to use your significant political powers for good.

(P.S. Do you care to be vocal and transparent about who and how you lobbied to try to kill the Paul/Leahy bill? You have now referenced your efforts here at least twice, and your latest comment suggests you have been using one outlier case from a judge appointed by Lyndon Johnson (and never elevated) to make your case. I would like to know what other information about the federal sentencing system is being fed to folks considering reform bills, but problematically, even the work of federal elected reps are often clouded in opaque ways because so few are willing or eager to state and defend their lobbying efforts in public.)

(P.P.S. Can you tell the Buckeye BB game I had on my DVR was a boring blowout?)

Posted by: Doug B. | Dec 27, 2013 10:17:13 PM

albeed --

There are serious posts to answer here, but your non-serious one is just irresistible.

1. Your claim that there have been no comments on C&C since December 19 is flat-out false, not that this should surprise anyone. No wonder you refuse to criticize Gritsforbreakfast for being a liar. At least you refrain from hypocrisy. Congratulations!

2. C&C aims for a different audience and has never been a comments-oriented blog.

3. Occasionally, like when things are percolating in Congress, and there are calls to make and take, and this or that to write and review, people have things to do other than comment. Indeed, I think I've put up only three or four posts at C&C this entire month. Is that because I'm losing interest? Do tell!!!

4. Neither my comments to Doug nor his longer ones to me are "diatribes," to use your typically rude and absurd wording.

5. Even though you opine that I'm being diversionary by writing about only a "small portion" of Doug's initial post, he seems to think quite differently, and a quite interesting (and important, if you knew enough law to figure that out) discussion has developed.

But, believe me, I won't try to persuade you that Doug knows more about what he finds worthy of engagement than you do.

Posted by: Bill Otis | Dec 28, 2013 12:09:03 AM

I think there are three discrete issues when it comes to this Holder DOJ prosecution.

First, does the state have a statutory double jeopardy provision which would preclude a state prosecution if the feds whiff?

Second, if the facts are true, as alleged, this guy needs the hammer dropped.

Third, the Holder DOJ is rotten to the core, particularly on matters of race. It really is amazing---after all the many bias motivated assaults against whites that are making the news, Holder's DOJ chooses to drop the hammer here. Ordinarily, I would be very inclined to give the DOJ the benefit of the doubt, but no benefit of the doubt here. After the dismissal of the default judgment against the Black Panthers in Philly (can anyone imagine DOJ dismissing that judgment if the races were reversed?), the lenient treatment of Darryl Foster (a Civil Rights Division attorney who submitted personal travel expenses for government reimbursement), the consent judgment in Alabama which dictates the race-norming of school discipline (appalling, utterly appalling) and Holder's blowing off of race-based voting exclusion in Guam.

Holder is deeply corrupt, and his brand of racialism has no place in America.

Posted by: federalist | Dec 28, 2013 2:06:10 PM

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